More than 150 asylum seekers, including about 40 children, face living in limbo on the high seas in an Australian customs vessel for weeks, while their fate is decided in the High Court.

A Sri Lankan navy boat (left) on patrol in the southern port of Galle. Photo: AFP

Lawyers for the Abbott government and the asylum seekers agreed on a timetable for court action on Tuesday after the government promised to give 72 hours' notice in writing if it intended to hand the asylum seekers to Sri Lankan authorities. A directions hearing will be held within three weeks, raising the question of where the asylum seekers will be held in the interim.

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During the hearings, the government revealed that it had intercepted a boat carrying the asylum seekers outside Australia's migration zone and transferred them to a customs vessel. This follows the revelation on Monday that it had already handed over to Sri Lanka 41 asylum seekers on another boat after they were subjected to ''enhanced screening'' at sea.

Lawyers representing those on the second boat say they will challenge any transfer of the 153 people to Manus Island or Nauru while the case proceeds, on the grounds that such a transfer would be unlawful because the boat was intercepted on the high seas.

Illustration: Ron Tandberg

Another option would be to transfer the asylum seekers to Christmas Island until the case is decided. Greens senator Sarah Hanson-Young urged the government to bring the asylum seekers to Australia to assess their claims, saying they had already been at sea for three weeks and were ''anxious and frightened''.

Labor's immigration spokesman, Richard Marles, argued the group could have been assessed on Christmas Island or Manus Island.

''The government has options,'' he said. ''The reason they are not taking those options is because they want to protect nothing other than a political scoreboard - and that is not good enough and in the process what they are doing is trashing this country's international reputation.''

Ian Rintoul from the Refugee Action Coalition said the government had offered no commitments on what it would do with the asylum seekers in its custody.

''I have no doubt [Immigration Minister] Scott Morrison is currently working the phones trying to find some godforsaken place to dump them,'' he said.

In Parliament, the government's Senate leader, Eric Abetz, defended its hard line on boat arrivals, declaring: ''I see no sense of social justice whatsoever in giving priority to those who bypass safe haven after safe haven after safe haven and then pay a criminal to get them to the front of the queue.''

Human rights lawyer George Newhouse said after the hearing: ''What the government's decision today means is that a group of vulnerable men, women, and children will not be sent back to their persecutors in Sri Lanka.''

Mr Newhouse said the asylum seekers would be given access to legal representation.

High Court Justice Susan Crennan said during the hearing that a challenge to any handover would be heard ''expeditiously'' by the full High Court.

Counsel for the government Justin Gleeson, SC, said the boat carrying the asylum seekers had been intercepted outside Australia's migration zone, ending more than a week of secrecy by the government. Appearing via video link from Sydney, Mr Gleeson said the government had the executive discretion to determine where those detained ended up under the Maritime Powers Act.

Ron Merkel, QC, acting for the asylum seekers, claimed the government did not have the power to lawfully return the asylum seekers to Sri Lanka against their will before their claims were determined.

Mr Merkel has issued writs on behalf of 50 of those on board, including eight children aged between two and 16. He said that once an assessment of the claims had begun, the government was lawfully bound to take it to its conclusion under the provisions of the Migration Act.

159 comments

Where is our sense of equality and fairness. Why disadvantage refugees who cant afford to fund an operation like this? These Queue Jumpers are trying to get 153 of the 13750 spots available. Or are they simply being used to break down Australia's sovereign border policy?

Commenter

Kingstondude

Location

Melbourne

Date and time

July 09, 2014, 7:42AM

Mate. This whole thing was a set up. It was first reported by the press that the refugee advocate had been contacted, told the boat was leaking oil and that sea conditions were worsening, it was duly expected the vessel be towed to Xmas Is. Didn't happen as they had failed to take into account the close proximity of the Sri Lankan Navy vessel. In short, the whole thing has backfired on them.

Commenter

The Bujoo

Date and time

July 09, 2014, 8:44AM

For all those claiming this Government is inhumane, just remember it was Labor that initiated the 'Enhanced Screening Process' and it was Labor that previously returned asylum seekers back to Sri Lanka, the last time being in 2012 when more than 400 were sent back. Where was the outrage then? The Greens continued to support Labor at that time so they are only outraged when it suits their politics rather than any fundamental position of substance. The only difference between the three parties is that the Libs have been much more successful in stopping the boats. Having said that, given the likely long timeframe for a decision through the High Court, it is probably best to send the refugees to Manus Island in the interim. These are tough policies and no one can feel good about them, but if the Government is to stop boat arrivals then hard decisions need to be made or we will be back to square one.

Commenter

Flanders

Date and time

July 09, 2014, 8:45AM

“The Minister for “Enforced Disappearance” Scott Morrison has received his orders from the Prime Minister’s “Strategic Communications Branch" as reported by the Sunday AGE. 6/7

Hacka is part of this 4.3 million tax payer funded scam which trawls through the electronic and print media as well as social websites to ensure Abbotts indoctrinating spin is filtered out to the masses with the new mantra being "We have stopped the boats and we will stop the jihadists ".

Shock jocks Alan Jones and Australia's most biased commentator Andrew Bolt are given the script on a daily basis along with other journalists at Murdoch’s Herald Sun and The Australian.

The ABC & SBS have come under attack via the appointment of conservative members of the board such as Janet Albrechtsen a loyal Murdoch employee. The ABC and SBS along with the AGE remain the only source of inconvenient truths for Abbott who prefers the cosy biased reporting of the Murdoch press.

“Enforced Disappearance” from our “unsettled land”

Howard, Peter Reith and Abbott found there is something about the boat people that has provided politicians with an exploitable issue that does Australia's otherwise commendable record on refugees no good."

Commenter

George

Location

East Melbourne

Date and time

July 09, 2014, 9:04AM

Very good response, Joseph Goebbels principals of propaganda #3, always blame the victims and generalize. Que jumpers is no. 3 on the spin list.

Commenter

Kelvin

Location

Melbourne

Date and time

July 09, 2014, 9:04AM

You are using the same tactic as the 37 spin doctors working for the PM and the 95 spin doctors working for Minister Morrison, Kingstone, you are demonising the asylum seekers.

If the boats have stopped as Mr Morrison asserts then how come there are asylum seekers sitting on an Australian vessel somewhere out there on the high seas?

How many asylum seekers breach our "sovereign borders" everyday by plane? According to News.com the vast majority of refugee applicants arrive by plane, are allowed to live in the community and are not sent to Manus or Nauru.

Commenter

Paul01

Location

Riverina

Date and time

July 09, 2014, 9:11AM

Dude, 13,750 is a number determined by our Government. Reducing the absolute number as well as deciding the number will be reduced for any refugee who arrives by boat is the decision of the Government. Nobody is taking away a single spot from the 13,750 except our Government.

Commenter

jofek

Date and time

July 09, 2014, 9:17AM

If there is a queue then pray tell who is number 73 in line?

Commenter

tasch2

Location

Mornington Peninsula

Date and time

July 09, 2014, 9:18AM

Flanders, the Greens never supported Labor. However, I agree with the thrust of your argument that Labor are almost as appalling as the LNP on this.

There is no need to stop the boats other than to win votes; we have only ever had a small number arrive here. Everyone derides Pauline Hanson but it is her bigoted redneck view of the world that has won the day with the current policies. This is her legacy; the major Parties have danced to her ignorant tune.

Commenter

jofek

Date and time

July 09, 2014, 10:34AM

Look at the Squaddies scrambling now the Abbott has not just only another failed slogan on his hands but an international embarrassment to boot. Without a doubt this is the worst government in our short history.

8 Jul
In a major embarrassment for Sri Lankan authorities, a police commando member of the elite Special Task Force unit assigned to stop people smugglers has been identified as one of the ringleaders of a boat carrying 41 refugees that was recently intercepted by the Australian navy.

9 Jul
Former Liberal prime minister Malcolm Fraser has hit out at visiting Japanese Prime Minister Shinzo Abe's speech to the Australian Parliament on Tuesday, saying it ''should only have been made on his own soil''.

9 Jul
Immigration Minister Scott Morrison has defended the secrecy surrounding the fate of 153 South Asian asylum seekers being held at sea by Australian authorities as an integral part of the federal government’s operations strategy.